Volume. 8 Issue. 11 – March 20, 2024

This week the Tribunal considers an IRB claim that was called into question by the insurer for the Applicants failure to submit an Election of Benefits Form (OCF 10) along with multiple contentions of non-compliance on behalf of both parties ranging from s33 failures to s38 notice requirements. Ultimately, the Tribunal, while confirming that there were demonstrated examples of non-compliance, determined as a result what, if anything, was ultimately payable to the Applicant.

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Non-Compliance by Both Parties Impacts IRB and Medical Claims

Non – Compliance Abounds – In 21-005362 v Pembridge, it was the position of Pembridge that the Applicant Aziz was barred from proceeding with his income replacement benefit (IRB) application because he did not comply with certain requirements in the Schedule. Aziz was seeking IRB from December 2019 through to December 2021 (104 weeks) at the established rate as per his accountant of $371.06 per week. It was the position of Pembridge that Aziz was barred from proceeding with the claim for IRB, as he failed to submit an Election of Benefits (OCF-10). Aziz countered that “his intention to claim an income replacement benefit was clear because his eligibility for a non-earner benefit is precluded by section 12 of the Schedule.” He further noted that Pembridge had commissioned an accounting report that substantiates a benefit is, in fact, payable up to October 15, 2020.

The Tribunal agreed with Aziz, finding that “Section 12(1)1 of the Schedule precludes an insurer from paying a non-earner benefit to an insured person who qualifies for an income replacement benefit. And I find the application demonstrates that the applicant qualifies for an income replacement benefit.” Accordingly, Pembridge had failed to show that Aziz “may qualify for both an income replacement benefit and a non-earner benefit because there is no ambiguity as to the applicant’s entitlement to an income replacement benefit…an election by the applicant was not needed for the respondent to begin adjusting the claim”.

However, the Tribunal did agree with Pembridge that Aziz “failed to comply with section 33(1)of the Schedule as it pertains to his claim for an income replacement benefit.” Pembridge, through their expert accountant, sought 11 separate items, and the Tribunal noted there to be no evidence that Aziz had complied. Rather, Aziz commissioned his own expert report, wherein it was noted by Pembridge that six of the 11 documents sought remained outstanding. Their expert noted that one implication could well be that IRB quantum could be $nil, which the Tribunal accepting as a result that “at least some of the outstanding information is, in fact, reasonably required to assist with the quantum calculation.” Finding that Aziz had “failed to provide information that was reasonably required to assist in determining benefit entitlement… Therefore, I find the respondent is not liable to pay an income replacement benefit under section 5(1)2”. While not directly spoken to, clearly the Tribunal did not find the report and calculation produced by his expert to be compelling.

The Tribunal then addressed the submission on the part of Pembridge that Aziz was barred from proceeding with his claim for a psychological assessment, given that he failed to comply with s.44 of the Schedule, having failed to attend an IE. Aziz contended that he “had health issues and psychological symptoms that were known to the respondent and caused him to fear going out during the pandemic period…(and) the respondent refused to reschedule them to accommodate his anxiety.” While not raised by Aziz, the Tribunal opted to address the adequacy of Pembridge’s notices in seeking the IE. Ultimately, the Tribunal found that Pembridge’s reasons for the IE were not clear in its Notices.”

The Tribunal considered four separate Notices, finding across the board that they “do not provide corresponding reasons that speak to the applicant’s psychological condition or injuries. The reasons broadly refer to documentation and medical information without specifying which of these are relevant to the severity of the applicant’s psychological symptomatology… this is essential information because the respondent vaguely reasons that the severity of the injuries reported is not consistent with the file information.” The Notices also suggest the OCF-18 “is not reasonable and necessary for soft tissue injuries treatable under the MIG ” which the Tribunal confirmed as irrelevant for a psychological assessment. There were as well discrepancies in references to the number of Plans as well as the date of same. While neither of these alone made the Notices non-compliant, “they do add confusion and make the Notice less approachable and understandable.”

Given that none of the Notices were “specific, nor clear enough to be sufficiently understood by an unsophisticated person… This means the applicant did not have a duty to attend the IE, and the respondent may not rely on section 55(1)2 to bar the application.” However, the Tribunal found that neither of the OCF18s for psychological assessment and psychological treatment were reasonable and necessary. There was found to be “insufficient evidence of psychological symptomology owing to the accident that merits assessment or treatment”.

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